This article was published in the Autumn 1996 issue of Formulations
by the Free Nation Foundation
 
To Serve and Protect by Bruce L. Benson
 
Reviewed by Roy Halliday

   

In To Serve and Protect: Privatization and Community in Criminal Justice, Bruce Benson argues for privatizing the American legal system (including police, courts, and prisons) and adopting a revised version of the old Anglo-Saxon system under which crime victims have a right to restitution from criminals. Benson describes the pros and cons of some measures that would reform the American legal system to allow more privatization. He also explains the fully privatized legal system that he advocates, which would require changes in the law to allow individuals to sell some or all of their right to restitution and to allow private ownership, management, and policing of roads and all other “public” property. Benson’s restitution-based legal system fits well with the system promoted by Randy Barnett in The Structure of Liberty (see my review in Formulations Vol. VI, No. 4); they have the same advantages and are supported by some of the same arguments.

Compared to the current legal system in America, which imposes the costs of investigations, trials, and prisons on innocent taxpayers and does little to compensate victims of crime, Benson’s victim-restitution system is more fair and more libertarian because: (1) it eliminates all victimless-crime laws, (2) it helps victims of crime to recover from the losses inflicted on them, and (3) it makes criminals bear most of the costs of crime investigation, court proceedings, restitution, and incarceration. With regard to preventing and negating crime, Benson’s privatized justice system is more efficient than the current legal system because: (1) victims can receive compensation quickly by selling all or some of their right to restitution to agents who are in a better position to capture criminals and extract restitution from them, (2) competition and the profit motive made possible by the markets for these services will lead to improved methods of crime prevention, crime investigation, court proceedings, restitution, and incarceration, and (3) the prospect of compensation gives victims more incentive to report crimes and to cooperate with the private police and courts.

Benson’s system is not merely hypothetical. He cites many examples to show that the government-run legal system in America is so broken that private alternatives are popping up all over the country in spite of government efforts to hamper them. Furthermore, Benson explains that victim-restitution-based law has worked well in the past (in Anglo-Saxon England for example) and that it works well now in Japan.

Many of Benson’s points about the efficiency of privately produced services are simple, common-sense conclusions, but he backs them up anyway by citing study after study. He aims his arguments at potential reformers of the American legal system in the hope that his data and logic can help overcome the resistance of entrenched groups who have a vested interest in the current system. Perhaps out of deference to this audience, Benson makes his case without appealing to emotions or conscience. Laws for Benson, are simply rules of a game—they are nothing to get excited about. Life, it would seem, should not be taken personally. In fact, Benson makes his case for liberty, justice, and individual rights with less passion than some others exhibit in arguing over the designated-hitter rule in baseball. I don’t care for this dry approach, but maybe it is appropriate for Benson’s primary audience.

Even if Benson’s scholarly and respectful manner of pleading for more justice from the American judicial establishment is in vain, and even if his facts and polite arguments turn out to be wasted on American opinion molders, his research still provides a lot of ammunition for libertarians who want to create a free nation somewhere. He gives us the historical background of private law enforcement and provides information about current, market-supplied legal services that support the idea that a free (libertarian) nation is viable.

Historical Precedents for Private Law Enforcement

Private law enforcement preceded law enforcement by the state. In fact, state responsibility for law enforcement is a relatively new phenomenon in European history. The state got involved after monarchical government replaced the mediaeval system:
...development of monarchical government led to the creation of criminal law as a source of royal revenues, and this criminalization took away the private rights to restitution and significantly reduced the incentives to voluntarily cooperate in law enforcement. (195)
At the end of his summary of the history of law in England, Benson makes the following observation:
The fact that the state has taken over such a prominent role in criminal law is not a reflection of the superior efficiency of state institutions, but a result of the state’s undermining the incentives for private participation in criminal law. (223)

Law in Anglo-Saxon England

Benson gives us a brief history of Anglo-Saxon law, which Germanic raiding parties brought to England around 450 A.D. The raiders were freemen who chose to follow war chiefs based on their confidence in the chief’s ability to lead them in land-grabbing and looting. The law among these pirates was a contractual arrangement between the chiefs (kings) and their followers.

The contractual arrangement among these thieves obligated the king to provide his followers with “battle equipment, food, and war booty (including land) in exchange for their support in war.” (202) As is typical of those who believe rights derive from contracts rather than being an inherent part of man’s nature, the pirates regarded their victims as being outside the law and therefore as having no rights. Since the Anglo-Saxons had made no contract with the earlier inhabitants of England, how could it be wrong to invade England, kill the inhabitants, and take their property?

The tenure of Anglo-Saxon kings was temporary. It only lasted if warfare continued and the kings were able to persuade men to follow them into battle. “Kingship was contractual rather than hereditary, and appointment of a successor was not automatic; nor was a kingship considered a position for life.” “In fact, the word king derives from the Old English word cyning, and the earliest records use the phrase ceosan to cyninge, which means ‘choose as king.’” (202)

Unfortunately for those Anglo-Saxons who moved to England, warfare between the various Anglo-Saxon kingdoms was almost continuous from 450 to 600 A.D. And why not? The contracts that established obligations were within kingdoms rather than across kingdoms. No kingdom had an obligation to respect the property of other kingdoms—so they fought to take land from each other. The victorious kingdoms grew in size as the number of kingdoms declined such that by 600 A.D. England was divided into seven regions controlled by fairly well established dynasties.

Throughout this period the primary function of kings was to carry out warfare. They apparently did not presume to be lawmakers, and law enforcement remained in the hands of local reciprocally established groups. (202)
Over the next 250 years warfare between the Anglo-Saxon kingships continued, and the kingdoms of Northumbria, Mercia, and Wessex became dominant. Then the Vikings invaded and wiped out the kingdoms of Northumbrian and Marcia, which left only the kingdom of Wessex in southern England. King Alfred of Wessex fortified his position and began to reconquer the parts controlled by the Danish kings. His son continued the process. By 937 England was a single kingdom.

Meanwhile there were apparently some people who engaged in farming and other peaceful pursuits. These people were not part of the contracts with kings. Instead their rights and obligations toward each other were determined by the customs that the Anglo-Saxon invaders brought to England. Traditionally, neighbors helped victims catch criminals out of friendship and because they might need reciprocal help in the future or had received such help in the past.

By the tenth century, there was a clearly recognized Anglo-Saxon legal institution called the hundred. The primary purposes of the hundreds were rounding up stray cattle and dispensing justice, although they were also the locus of a number of other important social activities and the providers of a number of jointly produced services, such as road maintenance. When a theft occurred, the men of the several tithings that made up a hundred were informed and they had a reciprocal duty to pursue the thief. A tithing apparently consisted of a group of neighbors, many of whom probably were kin. These voluntary groups provided ‘the police system of the country,’ but their role went well beyond policing; they also ‘made everyone accountable for all his neighbors.’ Indeed, social relations were generally maintained only with people who shared surety protection through association with a tithing and a hundred. (198)
The hundred performed the local judicial function by selecting a committee of twelve to arbitrate disputes between members. To settle disputes between individuals who lived in the same shire but were not members of the same hundred, the hundreds selected a committee of twelve to arbitrate disputes in the shire court. There was apparently also a third court, probably with a committee operating in a similar manner to the hundreds and the shire courts, to settle disputes between individuals who lived in different shires. “When the committee could not determine guilt or innocence in a particular case, it was appealed to what Anglo-Saxons believed was a higher authority: their God. In such cases, trial was by ordeal, and the survivor of the ordeal was assumed to have been saved by God because he was innocent.” (199)

In the Anglo-Saxon legal system, all offenses were basically treated the way torts are treated in American civil courts. That is, the guilty party was punished by making him pay restitution to his victim. Even those found guilty of murder were punished by being required to pay money to the victim’s family. For large restitution payments, offenders were given up to a year to pay or they were made indentured servants of the victim’s family.

If an accused individual refused to submit to a trial, the accuser and his supporters could legally kill him. If either the accused or the accuser refused to accept the decision of the court, he was “ostracized by society in general, and physical retribution became the responsibility of the entire community.” This sometimes resulted in blood-feuds when the accused’s family backed him up against the onslaughts of those supporting the accuser. (200)

Today this so-called voluntary system of justice is not only unacceptable to the entrenched establishment, it is not acceptable to most Americans. Benson recognizes that our society is too secular to unite behind the idea of trial by ordeal as an appeals court run by God. But that is not the only problem. Another problem is that the American population is too large, diverse, and mobile for ostracism to work as well as it did in the small Anglo-Saxon communities of England in the first millennium. (It is hard to get away with a crime if you can’t get away.) Another problem, for me at least, is that American juries are too extravagant with other people’s money. Having heard horror stories about absurdly high awards given by juries to plaintiffs, I don’t want to see criminal law follow the model of American civil law.

Another problem is that modern Americans are too horrified by involuntary servitude and debtors prisons to condone them as means for restitution, even though if you think about it, such forms of slavery can be more humane than sanctions that have more support in America such as imprisonment and capital punishment. In some cases, if the restitution owed is not beyond the person’s abilities, his sentence in a debtors prison is self-determined. The harder he works, the sooner he pays off his debt and the sooner he regains his freedom. There is a sort of poetic justice in this.

The major objection I have to the traditional Anglo-Saxon system of law is the same objection I have to the contracts between Anglo-Saxon kings and their followers: both of these arrangements are based on the assumption (which Thomas Hobbes revived centuries later) that people have no obligations other than the ones they create through contracts and, therefore, that it is all right to pillage, rape, and murder strangers, foreigners, and any others who have not made a specific contract with you or who have opted out of their contract. In other words, the Anglo-Saxon rules are based on the denial of natural rights.

As evil and barbaric as Anglo-Saxon law is, it compares favorably with American law in some respects. The primary advantage Anglo-Saxon law has is that it aims at restitution to the victim, whereas American criminal law is based on coercive control of the public through government legislation and administrative regulations that often define crimes that have no victims and that are enforced by fines, compulsory rehabilitation programs, prison sentences, and executions. Another advantage of the traditional Anglo-Saxon system of law is that it keeps politics and the corruption of officials that characterizes most politically run activities out of the legal process.

Benson briefly explains the devolution of English law from privately enforced, restitution-oriented law to state-enforced, punishment-oriented law.

By the early eleventh century, many of the relatively localized functions of ealdormen (e.g. within a shire) had been taken over by royal appointees (sheriffs). The earls that remained, now clearly designated as royal appointees, were lords over much larger areas (several shires). Thus, the aristocracy that survived the long period of warfare was quite strong and relatively concentrated. At the same time the well-being of nonnoble freemen in England declined considerably, producing “semi-servile communities in many parts of the country.” These institutions of government evolved, in large part, because of external conflict (warfare), in order to take land from other groups or to protect existing holdings. (203)
The earls and sheriffs each controlled military forces, so the kings granted special privileges to them in exchange for their support in war and for providing administrative functions. The sheriffs administered the local land holdings of the king, accumulated produce for the king to consume, and collected tolls and other revenues for him. The king allowed sheriffs and earls to keep part of the produce and revenues they collected as payment for their administrative services. Eventually, the kings came to realize that they could obtain more revenue and grant more favors to their noble followers by intervening in the legal process.

As the number of kingdoms got smaller and the size of the remaining kingdoms got larger through conquest and consolidation, kings began to centralize power and take on the role of lawgiver.

Well before the Norman Conquest, for instance, outlawry began to involve “forfeiture of goods to the king” rather than the potential for confiscation by victims and tithings. ... More significant, violations of certain laws began to be referred to as violations of the “king’s peace,” with fines paid to the king rather than to the actual victim. (203)
In addition to the one-third of revenues from collection of tolls and other taxes that the kings allowed ealdormen to keep in exchange for mustering and leading men into combat, the kings allowed the ealdormen, as royal representatives within shires, to keep one-third of the fines they collected from the profits of justice. By the time Edward the Confessor came to power, judicial profits were lumped in with the profits from the royal farms and manors, and these were collected by the local sheriffs in exchange for part of the profits.

Law in England after the Norman Conquest

Things got worse when the Normans conquered England. William the Conqueror seized virtually all the land and established a system of feudalism by granting fiefs to Norman barons and the church in exchange for military support and administrative services.
The Norman kings also brought the concept of felony to England by making it a feudal crime for a vassal to betray or commit treachery against a feudal lord. Feudal felonies were punished by death, and all the felon’s land and property were forfeited to the lord. (208)
The Norman kings, inspired by greed, declared more and more different activities to be felonies. The kings became as arbitrary in their punishments as they were in their definitions of felonies. They generally opted to take all the property of a felon, but at different times they favored different forms of death, and sometimes they spared a felon’s life and merely had one or more of his limbs chopped off.

The Norman kings saw the opportunity to increase their revenues by intervening in non-felony law enforcement, and they were less reluctant than the Anglo-Saxon kings had been to ignore the traditional Anglo-Saxon system of justice.

Henry II laid many of the foundations for the modern system of English law. In stark contrast to the positive interpretation of Henry II’s reign that Arthur Hogue gives in Origins of the Common Law, Benson correctly views Henry II in an unfavorable light. According to Benson, Henry made the English system of law much worse. He wanted to increase his revenues to reinforce his power and to finance his wars, so he had his royal courts take over many of the functions of the county and hundreds courts.

Henry and his judges defined an ever growing number of actions as violations of the king’s peace. These offenses came to be known as crimes, and the contrast between criminal cases and civil cases developed: criminal cases referred to offenses that generated revenue for the king or the sheriffs rather than payment to a victim. (210)
The increased number of activities defined as crimes and the increased scope of royal justice created a backlog of cases. So in 1178:
Henry established a permanent curia regis court to hear all suits except those that required his personal attention. This court met throughout the year and almost always at Westminster, becoming the first centralized king’s court. The treasurer always sat on the ten- or twelve-man court, indicating the vital role of justice in revenue collection. (209)
The transformation of the English system of law continued under the reign of Edward I. To ensure more profits for the king, royal law declared victims to be criminals if they “obtained restitution prior to bringing the offender before a king’s justice where the king could get his profits.” Then “royal law created the crime of theftbote, making it a misdemeanor for a victim to accept the return of stolen property or to make other arrangements with a felon in exchange for agreement not to prosecute.” (211)
More laws were added. For instance, civil remedies to a criminal offense could not be achieved until after criminal prosecution was complete; the owner of stolen goods could not get his goods back until after he had given evidence in a criminal prosecution; and a fine was imposed on advertisers or printers who advertised a reward for the return of stolen property, no questions asked. (212)
The diminution of the right to restitution substantially reduced the incentives for non-nobles “to maintain their reciprocal arrangements for protection, pursuit, prosecution, and insurance, and to participate in the local court system.” Many of the hundreds ceased functioning altogether during William’s reign. Succeeding regimes imposed other changes that further reduced the effectiveness of the Anglo-Saxon system of private law enforcement. More and more land was enclosed, which reduced the possibility of cattle wandering away and correspondingly reduced the value of cooperating in tithings to retrieve strays. In the 1400s, the price of wool rose relative to the prices for grain, so the lords evicted large numbers of tenant farmers and converted land that had been used for crops into sheep pastures.
Many of the remaining kinship groups and tithings were broken apart as people were driven from their traditional homes. Thus, for a number of interrelated reasons, the reciprocity-based tithings and hundreds dissolved or became ineffective, and Norman kings were forced to attempt to establish new incentives and institutions for law enforcement in order to collect their profits from justice. (206)
As a result of the breakdown of the private system of law enforcement in England (which nowadays would be characterized in the media as a failure of the unregulated market), the state eventually found it necessary to coerce people to provide law-enforcement services and to make taxpayers absorb the expenses.
As early as 1729, the central government began to support local law enforcement in Middlesex, where the seat of government and the residences of most government officials and parliamentarians were located. Thus, government officials transferred the cost of law enforcement in the area where they lived and worked onto the general taxpayers, while the rest of the citizenry was forced (under statute) to provide their own policing and prosecutorial services. (213)
As taxation became accepted and profits from justice became a relatively less significant source of government revenues, the state began to replace fines and confiscations of property with other forms of punishment such as imprisonment and transportation to penal colonies.
By the early 1800s, imprisonment was the major form of punishment for felons in England, and parliamentary actions in 1823, 1865, and 1877 effectively transformed England’s system of punishments into a public prison system financed by tax revenues. (219)
Protection from criminals and pursuit of them was a mandated duty of all private citizens, but citizens had less incentive to cooperate after the Anglo-Saxon system had been eviscerated. So in 1692 Parliament offered rewards for the apprehension and prosecution of highwaymen. As a result, a bounty hunter industry replaced the cooperative system of law enforcement. This led to a new problem: bounty hunters began to arrest and prosecute innocent people to collect reward money. When this scandal came to public attention, the bounty hunter system was discredited.

Finally, in the 19th century, government police forces began to be established, first in the major cities, and eventually in most municipalities.

Law in the American Colonies

For a brief period in early colonial times, the colonial governments played no active role in arresting and prosecuting lawbreakers, and government courts were often circumvented:
Public courts were available in most colonial capitals, but distance and poor roads made use of them for many colonists very expensive. Thus, government trials could be and frequently were simply bypassed in favor of direct bargaining or third-party arbitration or mediation, with restitution to the victim from the offender being the dominant sanction. (95)
As a consequence of these circumstances, officials in the judicial system had low status and received low pay, and the revenues expected from court-ordered fines did not materialize. The colonial governments acted quickly to fix these problems by instituting more public prosecutions. In Virginia by 1711 deputies of the attorney general in each county were prosecuting not only cases of special interest to the king but also most routine criminal cases. In 1751 all crime victims who wanted to prosecute offenders were ordered to confer with the deputy attorney general whether they wanted to or not, and by 1789 the deputy attorney generals had almost complete control of prosecutions in their counties. This increase in the judicial bureaucracy was motivated by demand on the part of colonial governments for money rather than by consumer demand. The government courts were not widely used by colonists even when those courts held a monopoly on criminal prosecution. Many settlers preferred to treat offenses as torts so they could receive restitution through private arbitration rather than go through the criminal prosecution process and have the offender pay fines to the government. (95-96)

Merchants established their own arbitration arrangements because the government courts did not apply commercial law fairly and the proceedings took too long. The use of commercial arbitration expanded in the 17th and 18th centuries and it continues today.

Law in the United States for the First 100 Years

The rules and procedures used in the government courts in United States were imported from England and were basically the same. But for the first hundred years or so in the United States many people continued to use private means of law enforcement. Some chose to do so because they belonged to special communities that held common beliefs (Quakers and Mormons for example). Merchant communities chose to do so for economic reasons. Frontier associations chose to do so because they were moving west faster than the government bureaucracy. (96)

Wagon trains adopted contracts to establish the rules for the journey and used banishment as the ultimate means of enforcement. (102) Land clubs and claim associations in the west adopted written contracts that specified the rules for registering land claims, enforcing those claims, and settling property-rights disputes. Members of these groups who refused to abide by its rules and court rulings were ostracized and denied protection. (101) Mining camps also created contractual laws that they agreed to mutually enforce. When land suitable for mining became scarce enough to create potential disputes, the miners would gather together and vote to adopt rules. Rules were established by majority vote, but anyone who did not want to accept the rules was free to opt out of the contract for reciprocal protection of rights. “If a minority disagreed with a majority, they could set up their own separate mining district. Thus, those governed by a particular set of laws actually unanimously consented to be so governed.” (104)

When government law officers finally arrived in the mining towns, they tried to establish a coercive monopoly on criminal prosecutions. The public generally acquiesced, especially when the government courts honored the claims established by the private laws of the miners associations. But when the government office holders became corrupt, the people sometimes took the law back into their own hands temporarily by creating vigilance committees until justice was reestablished. This happened several times in Montana. (See my review of Vigilantes of Montana in Formulations Vol. VII, No. 2.)

It was not merely coincidental that the government law officers often turned out to be corrupt. Government law was sometimes instituted in the west by groups of entrepreneurial swindlers “who saw opportunity in prospecting in government.” (106) These criminals needed a corrupt legal system to protect themselves against prosecution for their murders and robberies, so they used the political means to replace the existing private legal system with a governmental one that they could control.

The first public police department in the United States was established by the Mayor of New York City in 1844. Soon thereafter mayors in other cities followed his example. These early police departments were established for political purposes rather than because of consumer demand, and they were corrupt.

Crime control was, at best, a secondary concern. First of all, local elected officials used their police departments as a way to reward political supporters, much as early Norman kings granted some of the profits of justice to their powerful baronial supporters. A newly elected mayor typically fired virtually the entire police department and replaced it with his own supporters. Bribery was often necessary to obtain a position on the police force; that practice was financially reasonable, given the potential payoff from police corruption. ... At any rate, mayors and their political machines used their police departments to control the city for their own benefit. (224)

They [police departments] may have had some impact on crime, but that does not appear to explain their growth (in many instances the police impact on crime was to facilitate its organization by accepting bribes in exchange for providing support for powerful criminals’ activities, and the powerful criminals were often powerful politicians). (225)

The public distrusted the urban police departments and believed (usually correctly) that police detectives were closely linked to organized crime. Sometimes, as in San Francisco in 1856, police departments became so corrupt that the citizens had to resort to vigilante activities to reestablish order.
The poor performance of public police is evidenced by the fact that this same period saw the birth and rapid development of the modern private security industry. ... Many of the largest and most well-known private detective and protection agencies that exist today were formed during this era of highly corrupt and ineffective public police, including the Pinkerton Detective Agency, Wells Fargo, Brinks, the railroad police, and the Burns Detective Agency. ... They protected private property and transported valuables, investigated crimes, arrested criminals, and provided all the types of crime control services that public police are expected to provide today ... (225-226)

Private Legal Services in the United States Today

Nowadays most Americans associate law and order with the state-run legal system and regard the idea of private law as unworkable and unjust. They don’t know about our heritage of private law and they don’t realize the extent to which private law still operates here. They haven’t read Benson’s book.

Private Security

In the United States, private security is the second fastest growing industry. Private guards patrol residential buildings, neighborhoods, and corporate headquarters and provide security for airports, sports arenas, hospitals, colleges, state and local government buildings, banks, manufacturing plants, hotels, shopping malls, and retail stores. (89)
The American Banking Association and the American Hotel-Motel Association retain the William J. Burns International Detective Agency to investigate crimes committed against their members. A bank security director pointed out why. “[I]t was necessary to employ private investigators because the public police and investigative forces were too busy to devote the amount of effort required by [banks]” ... this view is prevalent in private business organizations. Private investigators therefore are frequently employed to do things that public police will not do, such as preemployment background checks or undercover work to detect employee dishonesty or customer shoplifting. (149)

As for competition, the number of private protection and detective agencies in the Unites States probably exceeds thirteen thousand today, and competition is fierce. (171-172)

To combat employee theft, business firms use sanctions such as “dismissal, suspension without pay, transfer, job reassignment or redesign to eliminate some duties, denial of subsequent advancement, and restitution agreements.” As a result, “close to half of all employee thefts are resolved internally with private procedures and privately imposed sanctions.” (125)

Private Courts

By 1992 there were more than 50 private, for-profit, dispute resolution companies in the United States. Judicial Arbitration and Mediation Services Company (JAMS), which started in 1979, has grown to be the largest firm in the industry. Civicourt in Phoenix and Judicate in Philadelphia have been settling disputes quickly and inexpensively since 1983. As of March 1987, Judicate employed 308 judges in 45 states. Other firms in the business include the Washington Arbitration Services, Judicial Mediation of Santa Ana, Resolution of Connecticut, and EnDispute, which is the second biggest firm in the industry. EnDispute had an increase in gross revenue of 130% between 1988 and 1992. JAMS had an increase in gross revenue of 826% during the same period. (115-116)

Since the 1960s community dispute resolution programs have been using volunteers to resolve domestic quarrels, squabbles between neighbors, animosities between ethnic groups, and even robberies that the courts find too trivial to bother with. (116-117)

Victim-offender mediation (VOM) is spreading throughout the United States, Canada, and Europe. In 1995 there were about 150 VOM programs in the United States.

These programs offer mediation between victims and the criminal offenders, generally seeking restitution for the victims and reconciliation. Victims are able to express the full impact of the crime on their lives, to find out why the offenders targeted them, and to directly participate in determining how to hold the offender accountable. Offenders can also tell their story and explain how the crime affected them. Most (over 90 percent in one large survey) result in an agreement regarding compensation to the victim from the offender, and most of the agreements (over 80 percent in the same survey) are fulfilled by the offender. (117)
Unfortunately, victims cannot choose officially recognized private options such as VOM without the approval of criminal justice officials.
Such programs have relatively little chance of making a major impact because they are simply part of the government-controlled institutional arrangement of law enforcement dominated by people who are interested in maintaining their power and influence or pursuing their perception of “public interest,” rather than in actually achieving justice in the interest of individual victims. Thus, the programs tend to get the cases that prosecutors or judges do not want to be bothered with. (250)

Neighborhood Vigilance

Because of the limitations placed on officially recognized private options, less formal institutions tend to dominate private criminal justice. In close-knit neighborhoods, whispering campaigns and ostracism have been used against offenders to induce them to pay their debts or make restitution to their victims. Sometimes neighbors will even break laws as defined by the state and seize or destroy an offender’s property when he refuses to pay his debts. (119)

Organized residents in crime-ridden neighborhoods have pressured drug dealers and associated violent criminals to leave. In general, these anti-crime volunteers wear distinctive apparel such as orange hats (so they won’t be mistaken for drug dealers or their clients), and they stand watch outside crack houses and on street corners where drug traffickers and prostitutes congregate. Sometimes they chant anti-drug slogans, write down license-plate numbers, and carry video cameras and two-way radios. These activities cause the drug dealers, their clients, and the potential muggers who prey on customers of drug dealers and prostitutes to feel uncomfortable and to take their business to less vigilant neighborhoods. Sometimes these neighborhood groups go beyond libertarian methods by reporting building-code violations to the city government, causing the city bureaucrats to serve eviction notices and confiscate crack houses. (119-124)

Private Streets

Many residential developments all around the United States involve private streets and private security arrangements (90). The same is true for many apartment and condominium complexes, enclosed shopping malls, and office parks (92). In 1970, the residents of several crime-ridden neighborhoods in St. Louis, Missouri, petitioned the city to deed the streets to them, and the city complied with the requests “in return for the residents’ assumption of responsibility for street, sewer, and streetlight maintenance, garbage pickup, and security services above normal fire and police protection.” (84)

A comparison of crime rates on private streets with those on adjacent public streets shows significantly lower crime in virtually every category. (158)

Pitfalls of Privatization

Benson recognizes the dangers involved in privatization. If services are privatized as monopolies, the private services are likely to be almost as inefficiently provided as government services because of the lack of competition. (42) If services are privatized on an open and competitive basis they will be provided efficiently, but this is only a good thing if the service demanded is itself a good thing. Benson explains the point this way:
If Hitler had contracted out the rounding up and extermination of Jews, it might have been accomplished at a lower per unit cost and more Jews could have been exterminated, but the fact that more of these politically defined “criminals” could have been exterminated more “efficiently” in a technological sense does not mean that the contracting out of this process would have been desirable. (47)
To avoid the pitfalls of privatization, such as monopolies and political corruption, Benson recommends privatizing the demand for criminal justice services as well as the supply. (48)

Hiring Criminal Services

In a libertarian nation, most kinds of contracts would be honored in private courts, but not all contracts. A murder contract would not be upheld, nor would any other contract between two parties to deprive a third party of his legitimate property. Some services now provided by various levels of the US government deprive people of their legitimate property and liberty. In a libertarian nation these services would be abolished rather than privatized. For example, a private company called Multi-State, which rents narcotics agents to small-town police forces and which in its first few months of operation arrested 150 drug traffickers and seized thousands of dollars worth of drugs, would be regarded as a criminal organization. (19) Another example is Behavioral Systems Southwest, which runs a prison that deprives 600 to 700 “illegal aliens” of their liberty on behalf of the Immigration and Naturalization Service. (21) Although many libertarians disagree with me, I regard the private prisons advocated by Benson as criminal organizations for the same reason that Murder Inc. and rent-a-narc companies are illegitimate—they violate people’s rights.

The Theory of Restitution

It is common knowledge that people disagree as to the proper amount of punishment or restitution due in cases of murder, rape, kidnapping, maiming, and other forms of assault and battery. It is less often acknowledged that different opinions are possible in the easiest cases. Consider a case of simple theft. Suppose Mooch steals Brown’s car. According to restitution theory Mooch has an obligation to restore Brown to the condition he was in prior to the car-theft, and Brown has an enforceable and transferable right to obtain restitution from Mooch. If Mooch does not make restitution voluntarily and if Brown does not have the time or resources to extract restitution from Mooch, Brown can sell or transfer all or some of his right to restitution to an insurance company or prison-labor company or any other company or person. The person or company that has the right to restitution can legitimately use force against Mooch to extract the restitution, even if the only way to do so is to capture Mooch and put him in a work-prison. Benson’s theory of restitution encompasses imprisonment of criminals if, and only if, “imprisonment to supervise the criminal as he works off his debt to the victim is the only way to assure payment.” (231).

This theory seems straightforward until you start asking questions about the objectively correct amount of restitution. To keep it simple, let’s suppose that Brown by himself tracks down Mooch. Now consider these questions: (1) Should Mooch return the car to Brown? (2) Does Mooch own Brown compensation for the amount of time Brown was deprived of his car? (3) Does Mooch owe Brown reimbursement for the costs of investigating the crime and tracking him down? (4) Does Mooch own Brown compensation for the emotional trauma caused by Mooch’s crime? (5) Does Mooch deserve to be punished in addition to his obligation to make restitution? Different theories of restitution are defined by how many of these questions are answered in the affirmative and by whether an affirmative answer implies an enforceable right (call this a hard yes) or merely a recommendation to the offender (a soft yes).

A total pacifist would answer each question with either a soft yes or a no. I would give a hard yes to the first question and a soft yes to the others. For criminal debtors like Mooch, Benson gives a hard yes to all five questions. For non-criminal debtors Benson gives a hard yes to the first four questions and a no to the fifth:

Like tortfeasors, criminals should be held accountable for the measurable damages they do, but since crimes with victims are intentional harms, criminals’ restitution payments should cover both measurable damages for the restoration of property or health (or if restoration is impossible, as with severe physical harm or murder, for the present value of the stream of lost income) and so-called punitive damages to compensate for the invasion of another person’s property rights. (235)
Not only do people give different answers to these questions, but people who give hard yes answers to the same questions do not agree on a standard of measure for calculating the amount of restitution owed, they do not agree on what the ratio between crime and restitution should be, and they do not agree on the extent to which penalties should be augmented or mitigated by special circumstances. Furthermore, there is no way to determine which of the many plausible opinions on these issues is objectively correct. Benson gives historical examples of different yardsticks used in different cultures. A rule of thumb in the Bible (Numbers 5: 6-7) specifies that an offender must pay measurable damages plus one-fifth for the immeasurable harm. In medieval Iceland fines were adjusted, in part, depending on whether the offender tried to hide or deny the offense. In Anglo-Saxon England a first offender could make restitution, but a second offender could not be forgiven and was declared an outlaw who has no right to live. Also in Anglo-Saxon England, the status of the offender and the victim were taken into account so that the wealthy and the powerful were required to pay more as offenders and were entitled to receive more compensation when they were victims.

My reason for giving soft-yes answers to the last four questions about the car thief is that I do not believe crime and restitution can be quantified with the precision necessary for enforceable rights. This is not a problem for Benson because in his view the right to restitution negates the rights of the criminal. Benson is willing to go along with whatever rules for restitution are acceptable to the majority in a particular culture.

The point is that the rules regarding restitution can be as complex and fine-tuned as the society wants them to be, and the precise rules that might evolve in a modern restitution-based system would naturally depend on the norms of the citizens of that society. (240)
The priority that Benson gives to restitution versus concern for the welfare of criminals and their families allows him to entertain proposals advocated by some utilitarian economists who are interested in deterring crime. One such proposal is to set fines equal to the measurable costs to the victim plus the costs of bringing the offender to justice divided by the probability that the offender will be brought to justice. This means that the penalty is doubled for types of crime that are now being solved half the time, the penalty is tripled for types of crime that are now being solved one-third of the time, and so on. Benson does not stress the arbitrariness of linking restitution to the variable rate at which criminal cases are cleared in the courts and the incompatibility of this with any coherent notion of objective rights. Instead he worries about the incentives that such a system would set up. “If damage awards are too high, there are incentives to falsely accuse and to falsify evidence in order to collect the damages.” Also, if the fine is too high “there may be incentives to commit an additional crime: if killing the robbery victim reduces the chances of getting caught, and the restitution for robbery is greater than or equal to what the robber can conceivably pay, then the robber might rationally commit murder.” (243-244)

To determine the level of restitution that will diminish the incentives to falsely accuse and provide effective marginal deterrence of crime, Benson seems to advocate that we experiment with people’s rights as though life were a video game that were inventing and we can play the restitution game under different sets of rules to find out which version of the game is the most fun. Benson has confidence that competition in the private justice industry in the free market will produce better and better rules for restitution. I would agree with him if he were referring to voluntary forms of restitution. But when we are considering forms of restitution that are imposed by force we are no longer considering an economy with an unhampered, free market. To the extent that the market for forcible restitution is unhampered, the market for protection services is restricted. As victims’ rights to restitution wax, the rights of the protection-services industry to defend debtors wane. Repossession of stolen property is not an act of aggression, but any use of force beyond that to obtain restitution or to punish an offender is arguably an aggressive act. To the extent that restitution and punishment, beyond repossession of stolen property, are not worked out voluntarily, the overall market is not free.

Conclusion

Benson’s system of restitution-based justice administered by private enterprise is superior to the current American system of justice, and I suspect it is more acceptable to most radical libertarians than it is to me. It occupies a position on the libertarian spectrum somewhere between my position in which self-defense is the only legitimate excuse for using force and Murray Rothbard’s retributive-justice-plus-restitution position. (See my article “Law and Violence” in Formulations Vol. VI, No. 1 for an explanation of how I classify libertarian theories of law according to the kinds of violence they condone.)

Thanks to Benson’s research this book is full of information of value to anyone interested in establishing a libertarian legal system. Except that I believe restitution should be voluntary rather than forced, I share Benson’s assessment of his hope for the success of this book:

Criminal justice is not going to be privatized immediately upon publication of this book. The hope is, however, that at least some of the analysis presented here will be sufficiently convincing that the already very rapid privatization trend can be accelerated, at least on some dimensions. That is why a large number of privatization options have been discussed, from more contracting out (recognizing its potentially serious flaws and shortcomings), to lifting legal barriers that limit the use of private security, all the way to a major reorientation of criminal justice into a restitution-based system that allows private courts (arbitrators or mediators) to determine restitution fines and private collection firms to supervise them. (317) D

To Serve and Protect: Privatization and Community in Criminal Justice ISBN 0-8147-1327-0 is published by New York University Press, Washington Square New York, NY 10003. Their website is http://www.nyupress.nyu.edu

Roy Halliday has written his own book about criminal justice: Enforceable Rights: A Libertarian Theory of Justice. It is available at his website http://royhalliday.home.mindspring.com/ROYHOME.HTM


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